In People v. Hopson, a divided Supreme Court today finds Sixth Amendment confrontation error in admitting as impeachment evidence against a murder defendant the confession of her boyfriend who committed suicide several weeks after confessing. The court’s opinion by Justice Leondra Kruger concludes the constitution was violated because “an accomplice’s confession implicating the defendant was used as substantive evidence of her role in the crime, even though she had no opportunity to test his reliability through cross-examination.”
There is no reversal of the conviction and life-without-parole sentence, however. At least not yet. The court instead directs the Court of Appeal — which had found no constitutional impropriety — to determine whether the error was prejudicial, necessitating a new trial.
Chief Justice Tani Cantil-Sakauye (joined by Justice Kathryn Werdegar) dissents, contending that the defendant waived her confrontation right and that, under the majority opinion, “defendants would be shielded from incrimination by an accomplice’s confession to police while simultaneously being allowed to attack with impunity the credibility and character of that accomplice.” The Chief Justice also concludes any error was harmless beyond a reasonable doubt.
Besides criticizing the dissent’s reasoning on the merits, the majority says that the dissent’s theory for admission of the confession “conducts the parties’ litigation for them” because the Attorney General never advanced the theory, and that there is no reason to deviate from the court’s practice of not “decid[ing] cases on grounds the parties have neither briefed nor argued.” The dissent calls it irrelevant that the Attorney General didn’t brief the issue, because “it is defendant’s claim on appeal that the prosecutor used [the] confession for its truth, and it is her burden to prove the existence of such error.”
The court reverses the Fourth District, Division One, Court of Appeal.
